AO 08-09-LOB

Subject: Is a person required to register as a lobbyist if he performs legal work for a client that doesn’t entail influencing legislative or administrative action?

This letter responds to your December 8, 2008 request for an advisory opinion regarding your obligation to register as a lobbyist for one of your clients, the law firm Coughlin Stoia Geller Rudman Robbins L.L.P. (“Coughlin Stoia”).

Short Answer

The short answer is no. You are not required to register as a lobbyist for Coughlin Stoia, because the nature of your work for that firm, as described by you, does not fall under the statutory definition of lobbying.

History

On October 29, 2008 Mr. Gravo submitted an email request for advice on whether he was required to register as a lobbyist when representing a client as an attorney. APOC asked Mr. Gravo for additional information on November 10 and issued informal advice on November 26, 2008. On December 8, Mr. Gravo asked that his request be put before the Commission for a formal advisory opinion on the same matter

Facts

The facts, as provided by Mr. Gravo are as follows. Mitchell Gravo is a lobbyist registered under the business name Law Offices of Mitchell D. Gravo, Inc. He has multiple lobbying clients and is also the employer of a lobbyist. In addition to his lobbying activities, Mr. Gravo is an attorney and performs non-lobbying legal work for various clients.

Mr. Gravo has been of counsel to Coughlin Stoia for several years, and does not believe the work he performs for the firm constitutes lobbying. However, since becoming of counsel, Mr. Gravo has listed Coughlin Stoia as a lobbying client on his APOC disclosures out of an abundance of caution. According to APOC files, Mr. Gravo has registered as a lobbyist for Coughlin Stoia since 2004, and listed “securities fraud issues” as the subject matter of the lobbying activity. Mr. Gravo also indicated that he provided legal services other than lobbying to Coughlin Stoia.

In his work for Coughlin Stoia, Mr. Gravo communicates directly with executive branch officials in the Attorney General’s Office to discuss potential litigation for the state. Specifically, Mr. Gravo brings litigation opportunities to the attention of the Attorney General’s office and seeks to determine whether the State is interested in reviewing the facts of, or participating as a plaintiff represented by Coughlin Stoia, in a particular case. Coughlin Stoia has a large practice representing institutional investors in securities litigation. Mr. Gravo asserts the subject of his direct communication with the Attorney General’s office is not for the purpose of influencing administrative or legislative action as defined in AS 24.45.171(1) and AS 24.45.171(10). Mr. Gravo also serves as a liaison for Coughlin Stoia with more than a dozen private clients involved in more than fifty lawsuits. Essentially, in cases where the State, as an institutional investor, has lost money due to alleged violations of securities laws, Mr. Gravo seeks to sell the services of Coughlin Stoia to represent the State in legal actions to recover the money.

Analysis

Lobbyists are required to file a registration statement prior to engaging in lobbying. This registration statement must contain the name and address of each person by whom the lobbyist is retained or employed AS 24.45.041. A lobbyist is defined in AS 24.45.171(11) as a person who

) is employed and receives payments, or who contracts for economic consideration, including reimbursement for reasonable travel and living expenses, to communicate directly or through the person's agents with any public official for the purpose of influencing legislation or administrative action for more than 10 hours in any 30-day period in one calendar year; or

) represents oneself as engaging in the influencing of legislative or administrative action as a business, occupation, or profession.

Note: APOC interprets this statute to mean the lobbyist must report each employer or client for whom the lobbyist engages in lobbying activities. While a lobbyist must report services in addition to lobbying for a lobbying client, a lobbyist need not report employment or clients wholly unrelated to any lobbying activities. The forms lobbyists are required to fill out reflect this interpretation.

Whether or not Mr. Gravo must register as a lobbyist for Coughlin Stoia depends upon the nature of the work done for that firm, i.e. whether he communicates with public officials for the purpose of influencing legislation or administrative action.

"Influencing legislative or administrative action” is defined at AS 24.45.171(9) to mean:

To communicate directly for the purpose of introducing, promoting, advocating, supporting, modifying, opposing, or delaying or seeking to do the same with respect to any legislative or administrative action.

Mr. Gravo’s description of his activities on behalf of Coughlin Stoia do not include any communications with any persons regarding legislative action. He is therefore not, on these facts, attempting to have influence on legislative action. A closer question is whether his activities include influencing administrative action. AS 24.45.171(1) defines "administrative action" to mean:

The proposal, drafting, development, consideration, amendment, adoption, approval, promulgation, issuance, modification, rejection, or postponement by any state agency of any rule, regulation, or any other quasi-legislative or quasi-judicial action or proceeding whether or not governed by AS 44.62 (Administrative Procedures Act); "administrative action" does not include

a proceeding or an action to determine the rights or duties of a person under existing statutes, regulations, or policies;

the issuance, amendment, or revocation of a permit, license, or entitlement for use under existing statutes, regulations, or policies by the agency authorized to issue, amend, or revoke the permit, license, or entitlement for use;

the enforcement of compliance with existing law or the imposition of sanctions for a violation of existing law;

procurement activity, including the purchase or sale of property, goods, or services by the agency or the award of a grant contract;

the issuance of, or ensuring compliance with, an opinion or activity related to a collective bargaining agreement including negotiating or enforcing the agreement;

Note: Legislative action is defined in AS 24.45.171(10) as: "the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, defeat, or rejection of any bill, resolution, amendment, motion, report, nomination, appointment, or other matter by the legislature, or by a standing, interim, or special committee of the legislature, or by a member or employee of the legislature acting in an official capacity; it includes, but is not limited to, the action of the governor in approving or vetoing a bill or the action of the legislature in considering, overriding, or sustaining that veto and the action of the legislature in considering, confirming, or rejecting an executive appointment of the governor;"

Mr. Gravo does describe direct communications with executive branch personnel as part of his work for Coughlin Stoia and he also states that his primary contact is with the Attorney General’s office. However, the work does not seek to influence "administrative action” as that term is defined in the statute. Mr. Gravo communicates with state personnel regarding litigation opportunities for the state. Deciding whether the state should review the facts of or participate in a lawsuit does not involve the "proposal, drafting, development, consideration, amendment, adoption, approval, promulgation, issuance, modification, rejection, or postponement by any state agency of any rule, regulation.” Nor is such a decision a "quasi-legislative or quasi-judicial action.” No agency of the executive branch needs to issue a regulation in order for the state to voluntarily participate in a lawsuit. AS 44.23.020 imposes on the Attorney General the obligation to "bring, prosecute, and defend all necessary and proper actions in the name of the state for the collection of revenue.” The Attorney General also has discretionary control over the legal business of the state, including the initiation, prosecution and disposition of civil cases. Public Defender Agency v. Superior Court, 534 P.2d. 947, 950 (Alaska 1975). Making a determination about participating in a lawsuit is not a quasi-judicial process. It is inherently not in the nature of a judicial proceeding, it is a determination whether the state should join a judicial proceeding.

Note: "Quasi-Judicial” means "designating an act or proceeding of or before an administrative tribunal or official of the general nature of a judicial act or proceeding but not within the judicial power as defined under the Constitution.” AKPIRG v. State, 167 P.3d 27, 35 (Alaska 2007)

Mr. Gravo’s activities most closely resemble the procurement activity specifically exempted from the definition of "administrative action” in 24.45.171(1)(D). Mr. Gravo, by bringing litigation opportunities to the attention of the Attorney General, is seeking to sell the legal services of Coughlin Stoia to the state. Under that statute the purchase or sale of services by an agency is not an administrative action.

Conclusion

Mr. Gravo’s actions on behalf of Coughlin Stoia are not intended to influence legislative or administrative action. Any remuneration received by Mr. Gravo from Coughlin Stoia is not a payment for or in connection with influencing legislative or administrative action.

Lobbyist registration and reporting is required of anyone being compensated to communicate with public officials for the purpose of influencing legislative or administrative activity. There is no prohibition in AS 24.45 on attorneys representing clients and performing legal services unconnected to influencing legislative or administrative action. Based on the facts as described by Mr. Gravo, his work for Coughlin Stoia does not meet the statutory definition of lobbying and Mr. Gravo is not subject to the lobbyist registration or reporting requirements of AS 24.45.

Only the Commission has the authority to approve an advisory opinion. 2 AAC 50.905. The Commission will rule on staff’s proposed advice at its next regularly scheduled meeting, set for February 11-13. The Commission may approve, disapprove, or modify the proposed advice. An advisory opinion must be approved by an affirmative vote of at least four members or it will be considered disapproved. Both staff’s proposed advice and the Commission’s final advisory opinion apply only to the specific facts and activity for which the advice was requested. If you wish to testify when the Commission considers this matter, please contact me no later than Friday, January 30.

If you rely on staff’s proposed advisory opinion in good faith and the Commission subsequently rejects the proposed advice, staff will take no enforcement action on your activities up to that point if you acted under the specific facts described. If you have any additional questions or would like to discuss this proposed advice, please contact me at (907) 465-4865.

The Commission approved the advice in this letter by an affirmative vote of 4-0 on February 12, 2009. The advice in this opinion applies only to the specific activity for which the advice was requested.

A copy of the original letter requesting the above advisory opinion is available upon request at the Alaska Public Offices Commission. Call (907)276-4176 or (800)478-4176.

Law

Sec. 24.45.041. Registration; disqualification.

(a) Before engaging in lobbying, a lobbyist shall file a registration statement on a form prescribed by the commission.

(b) The registration form prescribed by the commission must include

(1) the lobbyist's full name and complete permanent residence and business address and telephone number, as well as any temporary residential and business address and telephone number in the state capital during a legislative session;

(2) the full name and complete address of each person by whom the lobbyist is retained or employed;

(3) whether the person from whom the lobbyist receives compensation employs the person solely as a lobbyist or whether the person is a regular employee performing other services for the employer that include but are not limited to the influencing of legislative or administrative action;

(4) the nature or form of the lobbyist's compensation for engaging in lobbying, including salary, fees, or reimbursement for expenses received in consideration for, or directly in support of or in connection with, the influencing of legislative or administrative action;

(5) a general description of the subjects or matters on which the registrant expects to lobby or to engage in the influencing of legislative or administrative action;

(6) the full name and complete address of the person, if other than the registrant, who has custody of the accounts, books, papers, bills, receipts, and other documents required to be maintained under this chapter;

(7) the identification of a legislative employee or public official to whom the lobbyist is married or who is the domestic partner of the lobbyist;

(8) a sworn affirmation by the lobbyist that the lobbyist has completed the training course administered by the commission under AS 24.45.031(a) within the 12-month period preceding the date of registration or registration renewal under this chapter, except that this paragraph does not apply to a person who is a representational lobbyist as defined under regulations of the commission;

(9) a sworn affirmation by the lobbyist that the lobbyist has not been previously convicted of a felony involving moral turpitude; in this paragraph, "felony involving moral turpitude" has the meaning given in AS 15.60.010 , and includes convictions for a violation of the law of this state or a violation of the law of another jurisdiction with elements similar to a felony involving moral turpitude in this state.

Sec. 24.45.051. Reports.

(a) Each lobbyist registered under AS 24.45.041 shall file with the commission a report concerning the lobbyist's activities during each reporting period prescribed in AS 24.45.081 , so long as the lobbyist continues to engage in lobbying activities. The report shall be made on a form prescribed by the commission and filed in accordance with AS 24.45.071 and 24.45.081. Upon request of the commission, information required under this section shall be submitted electronically. The report also must include any changes in the information required to be supplied under AS 24.45.041 (b) and the following information for the reporting period, as applicable:

Sec. 24.45.171. Definitions.

In this chapter

(1) "administrative action" means the proposal, drafting, development, consideration, amendment, adoption, approval, promulgation, issuance, modification, rejection, or postponement by any state agency of any rule or regulation, or any other quasi-legislative or quasi-judicial action or proceeding whether or not governed by AS 44.62 (Administrative Procedure Act); "administrative action" does not include

(A) a proceeding or an action to determine the rights or duties of a person under existing statutes, regulations, or policies;

(B) the issuance, amendment, or revocation of a permit, license, or entitlement for use under existing statutes, regulations, or policies by the agency authorized to issue, amend, or revoke the permit, license, or entitlement for use;

(C) the enforcement of compliance with existing law or the imposition of sanctions for a violation of existing law;

(D) procurement activity, including the purchase or sale of property, goods, or services by the agency or the award of a grant contract;

(E) the issuance of, or ensuring compliance with, an opinion or activity related to a collective bargaining agreement including negotiating or enforcing the agreement;

(2) "agency" means a state department, division, commission, board, office, bureau, institution, corporation, authority, organization, committee, council or board in the executive branch, or independent of the executive branch, of state government;

(9) "influencing legislative or administrative action" means to communicate directly for the purpose of introducing, promoting, advocating, supporting, modifying, opposing, or delaying or seeking to do the same with respect to any legislative or administrative action;

(10) "legislative action" means the preparation, research, drafting, introduction, consideration, modification, amendment, approval, passage, enactment, defeat, or rejection of any bill, resolution, amendment, motion, report, nomination, appointment, or other matter by the legislature, or by a standing, interim, or special committee of the legislature, or by a member or employee of the legislature acting in an official capacity; it includes, but is not limited to, the action of the governor in approving or vetoing a bill or the action of the legislature in considering, overriding, or sustaining that veto and the action of the legislature in considering, confirming, or rejecting an executive appointment of the governor;

(11) "lobbyist" means a person who

(A) is employed and receives payments, or who contracts for economic consideration, including reimbursement for reasonable travel and living expenses, to communicate directly or through the person's agents with any public official for the purpose of influencing legislation or administrative action for more than 10 hours in any 30-day period in one calendar year; or

(B) represents oneself as engaging in the influencing of legislative or administrative action as a business, occupation, or profession;

(13) "payment to influence legislative or administrative action" means any of the following:

(A) a direct or indirect payment to a lobbyist whether for salary, fee, compensation for expenses, or any other purpose, by a person employing, retaining, or contracting for the services of the lobbyist separately or jointly with other persons;

(B) a payment in support of or assistance to a lobbyist or the lobbyist's activities, including but not limited to the direct payment of expenses incurred at the request or suggestion of the lobbyist;

(C) a payment that directly benefits a public official or a member of the immediate family of that official;

(D) a payment, including compensation, payment, or reimbursement for the services, time, or expenses of an employee for or in connection with direct communication with a public official;

(E) a payment for or in connection with soliciting or urging other persons to enter into direct communication with a public official;

(F) a payment or reimbursement for expenses in the categories set out in AS 24.45.051 (a)(2);